Tuesday, August 23, 2011

UNEMPLOYMENT TELEPHONE HEARINGS IN PENNSYLVANIA - WHAT YOU NEED TO KNOW

As of June 17, 2011, either side (employer or employee) may, upon proper request, have the right to appear at an Unemployment Hearing via telephone for whatever reason.

However, the rules for Telephone Hearings are very precise, and tricky.

Here is the key thing to know:

If either side is granted permission to appear telephonically, then both sides must submit all documentary evidence they wish to present at the Hearing at least 5 days prior to the start of the Hearing. If one fails to do so, one will be precluded at the Hearing from presenting any additional documentary evidence, no matter how crucial it may be.

This rule applies even if you intend to show up at the Hearing in person (i.e. the employer sought to appear by telephone but you did not).

This rule applies even if, despite your initial request to appear telephonically, you ultimately decide and do show up at the Hearing in person. In other words, if you realize that you failed to submit documents in advance of the Hearing and figure you can "cure" the problem by showing up in person, you still will be precluded from presenting any additional documentary evidence at the Hearing.

There is good news and bad news about Telephone Hearings.

Good News: In substance, Telephone Hearings are most beneficial to people who understand the rules, and who can anticipate what the issue in the case will be. The new rules mean that you will be able to see all of the documents that the employer intends to rely upon 5 days before the start of the Hearing. You may then strategize accordingly.

Bad News: On the other hand, if you do not know how the rules work, and cannot anticipate the employer's case, you can get smoked based upon the documentary evidence rule. Here is an example:

You are at the Hearing and the employer surprises you by claiming that you were fired because you failed to complete a job on time. You have an e-mail that shows you did complete the job on time, but you had not previously submitted that e-mail 5 days prior to the Hearing. You will be precluded from introducing or even discussing that e-mail at the Hearing.

Since many employers rely upon testimony from HR personnel and managers (employers are notorious for electing not to document things they want to use against employees), the documentary evidence may not hurt them as much as it will employees, who must often "resort" to documentary evidence they have to rebut or disprove employer's testimonial evidence.

I believe that the bad news far outweighs the good where employees are concerned. In fact....

TELEPHONE HEARINGS FAVOR COMPANIES IN SOME VERY SIGNIFICANT AREAS

First, the Telephone Hearing procedures favor those who have the greatest understanding of how unemployment hearings work. That is almost always employers, who typically appear at many Hearings each year, and are often guided by their attorneys. Claimants, on the other hand, have little or no familiarity with how hearings work, and don't have a cadre of lawyers on retainer to help educate them.

Further, the absence of any obligation to travel to and from the Hearing site will mean that more employers will be contesting unemployment, and will likely have more witnesses at their side. Click Here for more thoughts on these topics.

THE HEARING IS THE ONLY BITE AT THE APPLE YOU WILL GET, SO BE PREPARED

One other thing to keep in mind: As we have posted on in the past, appeals from the decisions of Unemployment Referees are very limited, and one will not on appeal be allowed to introduce any evidence in aid of the appeal that was not introduced at the Referee Hearing. So, no matter how valuable the documentary evidence is that you have but did not introduce at the Hearing, it will not be considered on any appeal to the Unemployment Compensation Board of Review.

WHY RETAINING AN ATTORNEY FOR A TELEPHONE HEARING IS MORE CRUCIAL NOW THAN EVER

I know, this sounds like a self-serving proclamation. But, read on...

In sum and substance, I believe the Telephone Hearing rules make it more critical to retain an attorney than if the Hearing is to be attended by both parties in person. Simply stated, an attorney that has been to hundreds of Hearings is in a better position to anticipate the critical issues and evidence than an employee going through the process for the first time. Since employers are typically guided by counsel behind the scenes, and understand the rules of unemployment because they have been to many Hearings, the typical unrepresented claimant is at a real disadvantage at a Telephone Unemployment Hearing.